USPTO Patents Application 09873500

V

United States Patent and Trademark Office

UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office

Address: COMMISSIONER FOR PATENTS
P.O. Box 1450

Alexandria, Virginia 22313-1450
www.uspto.gov

APPLICATION NO.

FILING DATE

FIRST NAMED INVENTOR

ATTORNEY DOCKET NO.

CONFIRMATION NO.

09/873,500

06/04/2001

24972 7590 05/18/2006

FULBRIGHT & JAWORSKI, LLP

666 FIFTH AVE

NEW YORK, NY 10103-3198

John E. Ware

QMET-201

5112

EXAMINER

BLEOC, CAROLYN M

ART UNIT

PAPER NUMBER

3626

DATE MAILED: 05/18/2006

Please find below and/or attached an Office communication concerning this application or proceeding.

PTO-90C (Rev. 10/03)

Advisory Action
Before the Filing of an Appeal Brief

AoDlication No

09/873,500

Annlicantfc)
WARE ETAL

examiner

Carolyn M. Bleck

Art Unit

3626

-The MAILING DATE of this communication appears on the cover sheet with the correspondence address

THE REPLY FILED 27 April 2006 FAILS TO PLACE THIS APPLICATION IN CONDITION FOR ALLOWANCE.

1 . S The reply was filed after a final rejection, but prior to or on the same day as filing a Notice of Appeal. To avoid abandonment of

this application, applicant must timely file one of the following replies: (1) an amendment, affidavit, or other evidence, which
places the application in condition for allowance; (2) a Notice of Appeal (with appeal fee) in compliance with 37 CFR 41 .31 ; or (3)
a Request for Continued Examination (RCE) in compliance with 37 CFR 1.114. The reply must be filed within one of the following
time periods:

a) I3 The period for reply expires 3_months from the mailing date of the final rejection.

b) CH The period for reply expires on: (1) the mailing date of this Advisory Action, or (2) the date set forth in the final rejection, whichever is later. In

no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of the final rejection.

Examiner Note: If box 1 is checked, check either box (a) or (b). ONLY CHECK BOX (b) WHEN THE FIRST REPLY WAS FILED WITHIN

TWO MONTHS OF THE FINAL REJECTION. See MPEP 706.07(f).
Extensions of time maybe obtained under 37 CFR 1.136(a). The date on which the petition under 37 CFR 1.136(a) and the appropriate extension fee
have been filed is the date for purposes of determining the period of extension and the corresponding amount of the fee. The appropriate extension fee
under 37 CFR 1.17(a) is calculated from: (1) the expiration date of the shortened statutory period for reply originally set in the final Office action; or (2) as
set forth in (b) above, if checked. Any reply received by the Office later than three months after the mailing date of the final rejection, even if timely filed,
may reduce any earned patent term adjustment. See 37 CFR 1.704(b).
NOTICE OF APPEAL

2. ^ The Notice of Appeal was filed on 27 April 2006 . A brief in compliance with 37 CFR 41 .37 must be filed within two months of the

date of filing the Notice of Appeal (37 CFR 41 .37(a)), or any extension thereof (37 CFR 41 .37(e)), to avoid dismissal of the
appeal. Since a Notice of Appeal has been filed, any reply must be filed within the time period set forth in 37 CFR 41 .37(a).
AMENDMENTS

3. □ The proposed amendment(s) filed after a final rejection, but prior to the date of filing a brief, will not be entered because

(a) Q They raise new issues that would require further consideration and/or search (see NOTE below);

(b) [H They raise the issue of new matter (see NOTE below);

(c) They are not deemed to place the application in better form for appeal by materially reducing or simplifying the issues for
appeal; and/or

(d) CD They present additional claims without canceling a corresponding number of finally rejected claims.

NOTE: . (See 37 CFR 1.116 and 41.33(a)).

4. □ The amendments are not in compliance with 37 CFR 1 .121 . See attached Notice of Non-Compliant Amendment (PTOL-324).

5. O Applicant's reply has overcome the following rejection(s): .

6. D Newly proposed or amended claim(s) would be allowable if submitted in a separate, timely filed amendment canceling the

non-allowable claim(s).

7. □ For purposes of appeal, the proposed amendment(s): a) □ will not be entered, or b) □ will be entered and an explanation of

how the new or amended claims would be rejected is provided below or appended.
The status of the claim(s) is (or will be) as follows:

Claim(s) allowed: .

Claim(s) objected to: .

Claim(s) rejected: .

Claim(s) withdrawn from consideration: .

AFFIDAVIT OR OTHER EVIDENCE

8. □ The affidavit or other evidence filed after a final action, but before or on the date of filing a Notice of Appeal will not be entered

because applicant failed to provide a showing of good and sufficient reasons why the affidavit or other evidence is necessary and
was not earlier presented. See 37 CFR 1.1 16(e).

9. □ The affidavit or other evidence filed after the date of filing a Notice of Appeal, but prior to the date of filing a brief, will not be

entered because the affidavit or other evidence failed to overcome all rejections under appeal and/or appellant fails to provide a
showing a good and sufficient reasons why it is necessary and was not earlier presented. See 37 CFR 41 .33(d)(1).

10. □ The affidavit or other evidence is entered. An explanation of the status of the claims after entry is below or attached.
REQUEST FOR RECONSIDERATION/OTHER

1 1 . [3 The request for reconsideration has been considered but does NOT place the application in condition for allowance because:

See continuation sheet .

12. □ Note the attached Information Disclosure Statement(s). (PTO/SB/08 or PTO-1449) Paper No(s).

13. □ Other:

, W w JePH THOMAS
SUPERVISORY PATENT EXAMINER

U.S. Patent and Trademark Office
PTOL-303 (Rev. 7-05)

Advisory Action Before the Filing of an Appeal Brief

Part of Paper No. 05052006

Continuation Sheet (PTO-303)

Application No.

Continuation of 1 1. The request for reconsideration has been considered but does not place the application in condition for allowance
because:

Applicant argues that Ware does not teach generating a customized test based on patient's characteristics and selected health domain,
and dynamically modifying the generated customized test if an estimated confidence level is outside a threshold. In response, the
Examiner respectfully submits that Ware teaches these features.

As per the recitation of "generating a customized test based on patient's characteristics and selected health domain, and dynamically
modifying the generated customized test," Ware teaches generating a customized test or dynamic assessment based on whether a
patient is a headache sufferer (reads on "patient characteristics) (page 12, col. 3). Ware discloses dynamically modifying a test based on
the immediately prior question (see Figure 3, page. 12, col. 1). Ware discloses the questionnaire or test pertaining to severity of
headaches (pg. 12 col. 3 par. 1), general overall health (pg. 12 col. 3 par. 1), effectiveness of treatment, self-perceived status (pg. 12, col.
1-3 see mental health and headaches discussion, pg. 13 col. 1-2 see mental health discussion). These are forms of "health domains."

As per the recitation of "dynamically modifying the generated customized test if an estimated confidence level is outside a threshold."
Ware discloses the following steps in Figure 3 for dynamically giving a health assessment including step 2) select and present optimal
scale item; step 3) score the response; 4a) re-estimating the score, step 4b) re-estimating the confidence interval, step 5) determining
whether a stopping rule is satisfied and determining whether the score has been estimated within a preset standard of precision based on
the confidence interval, wherein once the precision standard is met, the computer either begins assessing the next concept or ends the
battery (considered to be a form of "threshold"), wherein the precision standard based on the confidence interval (i.e., the threshold) is set
based on each patient's score (see page 12, col. 1-2). It appears that if the standard of precision is based on the confidence interval. It
also appears that the confidence interval is patient specific and is re-estimated if a stopping rule is not satisfied. Thus, it appears that
there is an estimated confidence interval and a threshold (i.e., stopping rule). Further, the test is modified based on whether the
confidence interval and health score meet the stopping rule (see step 6 in Figure 3).

2